Slone v. Kentucky Dept. of Transp., 74-2163

• Decision Date: 03 April 1975
• Docket Number: No. 74-2163,74-2163
• Citation: 513 F.2d 1189
• Parties: Denver SLONE, Plaintiff-Appellee, v. KENTUCKY DEPARTMENT OF TRANSPORTATION et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1189

513 F.2d 1189

Denver SLONE, Plaintiff-Appellee, v. KENTUCKY DEPARTMENT OF TRANSPORTATION et al., Defendants-Appellants.

No. 74-2163.

United States Court of Appeals Sixth Circuit.

April 3, 1975.

Perry Lewis, William L. Willis, Gen. Counsel, Dept. of Transp., Mary Jo Arterberry, Div. of Hearings, Phillip H. Doty, Staff Atty., Frankfort, Ky., for defendants-appellants.

Paul Fauri, Prestonsburg, Ky., Dean Hill Rivkin, Appalachian Research & Defense Fund of Kentucky, Inc., Lexington, Ky., for plaintiff-appellee.

Before PHILLIPS, Chief Judge, and PECK and McCREE, Circuit Judges.

PER CURIAM.

Kentucky, like a majority of states, has enacted an "implied consent" law designed to aid in the battle to keep drunk drivers off the public highways. That statute, K.R.S. 186.565, reads in pertinent part as follows:

"Any person who operates a motor vehicle in this state is deemed to have given his consent to a chemical test . . . for the purpose of determining the alcoholic content of his blood, if arrested for any offense arising out of acts alleged to have been committed while the person was driving or in actual physical control of a motor vehicle in this state while under the influence of intoxicating beverages." K.R.S. 186.565(1).

A driver may choose to withdraw his consent to the chemical test, but only upon pain of losing his license for six months:

"If a person under arrest refuses upon the request of a law enforcement officer to submit to a chemical test . . . the requesting officer shall warn the person of the effect of his refusal to submit to the test. If the person again refuses, none shall be given, but the department of public safety, upon the receipt of a sworn report of the law enforcement officer that he had reasonable grounds to believe the arrested person had been driving . . . in this state while under the influence of intoxicating beverages, that the person refused to submit to the test upon the request of the law enforcement officer, and that the person again refused to submit to the test after the law enforcement officer warned him of the effect of his refusal, shall revoke the license or permit of the person refusing to take the test for a period of . . . six months . . .." K.R.S. 186.565(3).

The net effect of these two provisions is to encourage a driver to submit to a test, the result of which can be used as evidence, either inculpatory or exculpatory, in a trial on the charge of driving while under the influence. The six month revocation section provides the encouragement.

The case before us presents the incredible circumstance of a Kentucky motorist whose driver's license was revoked for refusal to take a breathalyzer test, when in fact he took the test. Denver Slone, plaintiff-appellee herein, was arrested on a charge of operating a motor vehicle while under the influence of intoxicating beverages by a Kentucky State Police officer on December 7, 1973. He was taken to a police station where, with his consent, the arresting officer administered a breathalyzer test. Nevertheless, the police officer submitted a sworn report, dated December 17, 1974, to the Department of Transportation (hereinafter "the Department"), which stated that Denver Slone had refused, after a warning as to possible consequences, to submit to a chemical test. On January 9, 1974, Slone was advised by the Department that his right to drive was revoked for six months due to his "refusal to submit to a chemical test. 186.565(3)." Although he had a...